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JCP had not failed to make a reasonable adjustment by refusing to provide, at the beginning of the period, for an extension of the 13 week period

Secretary of State for Work & Pensions (Jobcentre Plus) v Mr Higgins 2013

The facts

Mr H was employed at Jobcentre Plus (JCP) as an administrative officer.

Following a lengthy absence for a heart condition Mr H’s GP gave JCP a fit note stating he “may benefit from a phased return to work” on “altered hours” for a period of three months (around 12 weeks). Mr H later suggested a phased return over a period of 26 weeks. JCP proposed a plan of a phased return over 13 weeks. It did not include the possibility of extending the period.

Mr H refused the plan. He refused to return to work unless an extension of the 13 week period was agreed. JCP did not want to promise that there would be an extension and, as he refused to return to work, dismissed him.

Mr H brought claims for unfair dismissal and for failure to make a reasonable adjustment.

The decisions

The EAT overturned the decision of the employment tribunal. The EAT concluded that JCP had not failed to make a reasonable adjustment by refusing to provide, at the beginning of the period, for an extension of the 13 week period.

The EAT set out the process that it (and an employer) needed to follow when considering whether adjustments are reasonable:

(1) the provision, criteria or practice (PCP) which Mr H complains about

(2) the group of people Mr H compares himself to

(3) the nature and extent of the disadvantage Mr H alleges he suffered

(4) the adjustments that could be made to avoid the disadvantage

The PCP identified was the requirement for Mr H to work his contracted hours. Mr H was disadvantaged because he was unable to return (compared to his fellow workers) to his contracted hours straightaway. The EAT went on to say that ‘it was not self-evident’ the disadvantage that an agreed review at the start of the 13 week period was designed to avoid and concluded therefore it was not an adjustment that JCP had to make. The EAT said:

“If the employer grants ... reduced hours which [Mr H] says he is capable of working, we do not see why it will generally also be necessary for [JCP] to give some explicit guarantee of future review. If, at the end of the period, [Mr H] continues to be under a substantial disadvantage, the duty to make an adjustment will still be applicable and can be judged in the circumstances at that time.”

In practice

This case emphasises that an employer’s duty to make reasonable adjustments is not a blanket one. Key questions for employers will be how the employee is disadvantaged and what steps can and are reasonable to take to alleviate that disadvantage.

Refusing to give a guaranteed review will not always be safe. It was not a breach of the duty to make adjustments here as it not alleviate any disadvantage suffered by Mr H, but this may not always be the case. At the very least employees should be reassured that phased returns to work will be reviewed regularly and decisions taken if and when circumstances change.

The duty to make reasonable adjustments can be difficult to navigate and it is easy to make the wrong decision. If you need advice and guidance about your duties to make reasonable adjustments, what adjustments you should make and consultation with employees our experienced team of employment law solicitors can help.

Clear, concise and accurate information for employers and HR professionals

The EAT has confirmed that it was discrimination arising from disability when discretionary bonus payments were automatically not paid to disabled employees who had been given warnings for high levels of sickness absence.

Correctly handling an employee’s long-term sickness absence can be a challenge for any employer, especially if the employee is a ‘disabled person’ under the Equality Act 2010. A key provision of this Act requires employers to make reasonable adjustments that would allow the employee to return to work. But when is this duty triggered? This was the question the Employment Appeal Tribunal (‘EAT’) had to decide in this case.

This was the question answered in this Danish case last month by the ECJ when it ruled that being seriously overweight may mean the employee has a disability. However, despite what you might have read in the media during the run up to Christmas, the ECJ confirmed that there is no general principle of EU law which prohibits discrimination on grounds of obesity – classified as having a body mass index of more than 30.

Posted 21st January 2015

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